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Michael A. Colbach - Over $26 million in verdicts and settlements in just the last nine years.

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Dangerous and Defective Products

Dangerous and defective products, or product liability, is an area that personal injury lawyers have a great impact in their work to protect the rights of people who have been harmed by these dangerous defective products. Defective products may take the form of child booster seats, cars that are recalled, defective tires, or pharmaceuticals, and medical devices. It is particularly troubling when corporations which are also supposed to work for the public health and welfare such as insurance, healthcare providers, hospitals and pharmaceutical companies put profits and their image ahead of the public that they serve.

The 2011 story of the State of Oregon suing Johnson & Johnson is a story of how the public needs personal injury lawyers and trial lawyers to help balance the power of these large corporations and hold them accountable when they act badly.

"Companies that break the rules and put consumers at risk will be held accountable," Oregon Attorney General John Kroger said in a statement." [5] The Oregon lawsuit alleges that the secret attempt to pull the defective product was incomplete and left over 787 packages on shelves in the state of Oregon. "Food and Drug Administration officials learned of this "phantom" Motrin recall mid-2009, but the suit alleges that J&J's McNeil division did not publicly announce a recall until February 2010." [5]

Johnson & Johnson has struggled recently with numerous product recalls. The company in the past had a good reputation for the quality of the products and their own record. But in the last several years, Johnson & Johnson products have faced many recalls. According to The Huffington Post, "The New Brunswick, N.J., company has now issued 22 product recalls, involving well over 300 million bottles of medicines, since September 2009." [1]

These recent Johnson & Johnson recalls, such as the destructive and painful DePuy ASR hip replacement implant, Chilrden's Tylenol because of a strange and mysterious odor, Adult Tylenol medication used for arthritis [3 tylenol recall], "contact lenses that irritated eyes," which were recalled in Asia and Europe [3], potentially contaminated syringes of the anti-psychotic drug Invega (used often to treat schizophrenia) recalled early February 2011 [2], and most recently a widely used epilepsy pill, "Topamax" was recalled in 2011 due to another strange odor.

One of the Johnson & Johnson recalls that could have been a minor incident, had the company done the simple and right thing, lead to an Oregon State lawsuit against the company for its handling of the Motrin so called "phantom recall," because of deceptive business practices and the company's apparent attempt to cover up the company recall of a defective product. Knowing that the Motrin was defective, and basicly didn't dissolve as it should which lead the user to not get the Motrin, the company used secret shoppers across the USA to secretly buy up all the lots of the specific defective Motrin from store shelves.

In Oregon, one of the secret shoppers became concerned and is credited with the whistle blowing by reporting the suspicious instructions to The Oregon Board of Pharmacy which in turn notified the FDA. According to the Portland Business Journal, these instructions to the secret shopper stated, "You should simply 'act' like a regular customer while making these purchases. THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THE PRODUCT! If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project." [6]

According to the Oregon lawsuit there may have been additional laws broken.

"One subcontractor said 33 stores in Nevada wouldn't be checked because secret shoppers there had to be licensed private detectives. Kroger said in a notice last August to Johnson & Johnson that the record wasn't clear whether the company "unlawfully shopped" in Nevada or "simply left remaining eight-packs on store shelves." [9]

In a New York Times interview, Oregon's State Attorney General Kroger argued that the importance of the Oregon lawsuit against Johnson & Johnson for their deceptive business tactics:

"It would be a disaster if these kinds of phantom recalls became an acceptable business practice. […] The real significance is to send a message to pharmaceutical companies and other companies that make medical products that they have to do proper recalls that give consumers real notice." [7]

According to Bloomberg News, "Attorney General John Kroger said Johnson & Johnson sought to avoid negative publicity with a plan to covertly buy up supplies of the defective product from retailers instead of conducting an open recall. The complaint, filed yesterday in state court in Portland, seeks restitution for all Oregon purchases of Motrin, plus unspecified damages" [8]

The company Johnson & Johnson continue statements to the media, even after Congressional inquiry, the company continues to contend they did nothing wrong in their handling of the defective Motrin. However, the State of Oregon has gone from a settlement deal to a very serious complaint. The State of Oregon has also acquired a signficant body of evidence to support their charges.

The Oregon complaint accuses the company of 787 violations of state trade law for packets sold to consumers, and another 27 violations for having retailers stock the product. Kroger didn't seek a specific penalty, but state law provides a fine of up to $25,000 per violation. Johnson & Johnson could be liable for more than $20 million. Kroger last summer sought the company's voluntary compliance and a settlement of $725,000, but no deal was struck. [9]

RESOURCES

1. Huffington Post

Johnson & Johnson Issues Epilepsy Recall

April 14,2011

2. Wall Street Journal
Johnson & Johnson recalls 70,000 Invega syringes
2/15/2011

3. New York Times

Acuvue Contact Lenses Are Recalled in Asia and Europe

By NATASHA SINGER

Published: August 23, 2010

4. 2 Tylenol Recalls:
http://www.tylenol.com/page2.jhtml?id=tylenol/news/subp_news.inc

In consultation with the U.S. Food and Drug Administration (FDA), McNeil Consumer Healthcare, Division of McNEIL-PPC, Inc., is initiating a voluntary recall of a limited number of TYLENOL® Arthritis Pain Caplet 100 count bottles. These bottles can be identified by the distinctive red EZ-OPEN CAP.  The recall is being initiated after identifying an unusual smell or taste associated with these lots that led to a small number of people reporting nausea and related symptoms. http://www.tylenol.com/page2.jhtml?id=tylenol/news/subp_tar_recall.inc TYLENOL® Arthritis Pain Caplet 100 count. These bottles can be easily identified by a distinctive red EZ-OPEN CAP.  In November 2009, 5 lots of this product were recalled due to consumer reports of an unusual moldy, musty, or mildew-like odor that was associated with nausea, stomach pain, vomiting and diarrhea.  The recall is being expanded, as a precaution, to include all TYLENOL® Arthritis Pain Caplet 100 count bottles with the distinctive red EZ-OPEN CAP.  Only the TYLENOL® Arthritis Pain Caplet 100's are affected by this action. All other TYLENOL® Arthritis Pain products remain available.  McNeil Consumer Healthcare will reintroduce the TYLENOL® Arthritis Pain Caplet 100 count product by January, 2010. 

5. CNN Money – courtesy of: Fortune, CNN and Money

Johnson & Johnson Phantom Motrin Lawsuit

January 13, 2011

6. PORTLAND BUSINESS JOURNAL
Oregon Sues Johnson & Johnson Over Motrin
January 12, 2011

7. NEW YORK TIMES http://www.nytimes.com/2011/01/13/business/13drug.html Oregon Sues J.&J. in Motrin Buyback By NATASHA SINGER and REED ABELSON Published: January 12, 2011

8. Bloomberg

Oregon Sues Johnson & Johnson Over Phantom Recall

Sophia Pearson - Jan 12, 2011 11:58 AM PT

9. The Oregonian Newspaper

Oregon sues Johnson & Johnson for leaving flawed Motrin on store shelves

By Les Zaitz, 1/13/2011

Michael A. Colbach

Portland personal injury attorney Michael A. Colbach

 

Portland Law Office
434 NW 19th Ave.
Portland, OR 97209

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mike@colbachlaw.com

503.243.1900

800.757.0923

Trial Attorney with Over $26 million in verdicts and settlements in just the last nine years.



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